Judicial accountability: Who will judge the Judges in India?

After the Pandavas win the war at Kurukshetra, Bhishma teaches the art of governance to Yudhishthira, the victorious king. One of the first lessons that he learns is the importance of swift and proportional punishment in ensuring civilised behaviour of citizens and maintaining the moral equilibrium in society:

“Listen scion of Kuru, to what the rod of punishment is and how it is judicially prescribed: for the rod of punishment is the one thing in this world upon which everything depends... if the rod of punishment did not exist in this world, beings would be nasty and brutish to each other... it puts this world into a stable order quickly, king”

Rahul Gandhi promised us a bouquet of anti-corruption legislations this Valentine’s season to reaffirm his commitment towards good governance and probity in public life. Instead, as the curtains draw close on the budget session that resembled a Rohit Shetty movie, only one of the six anti-graft Bills has been passed by our honourable parliamentarians (a poorly drafted Whistle-blowers Bill was passed without any discussion in the final minutes of the last day). It may be argued that the biggest loss to the nation has been the failure to pass the Judicial Standards and Accountability Bill, which was the first serious attempt to cleanse our judicial system.

There has always been a struggle for supremacy between the executive and judiciary in India. When the executive was powerful (think Indira Gandhi), judiciary’s role was severely curtailed. However, in the present era of coalition governments and PILs, the judiciary has taken a more active role in shaping public policy. But this increasing power of judiciary has not been matched by a corresponding increase in institutional mechanisms to check its misuse.

From the Ghaziabad Provident Fund scam to serious charges of misappropriation against the close relatives of former Chief Justice of India K G Balakrishnan and allegations of sexual misconduct against a former Supreme Court judge, instances of financial and moral corruption in our judiciary have become embarrassingly frequent over the years. Exasperated over the systemic rot in Allahabad High Court, the largest High Court in India with 160 judges, the Supreme Court was moved to paraphrase Shakespeare’s Hamlet and remark that “something is wrong in the Allahabad High Court”.

When questioned about this delicate issue, the present CJI prosaically remarked, “The judiciary is not untouched by corruption”. As guardians of the constitution, our judges have admirably protected democratic traditions in our country; but the question remains, who will guard the guards?

Supreme Court of India is seen in this file photo. Reuters

Functioning democracies have their internal self-correcting mechanisms through which the executive and legislature are kept in check by the opposition in the parliament, legislations like RTI and periodic elections. The judiciary has been kept outside the purview of the court of public opinion to ensure its credibility as an impartial arbiter of disputes. But this insulation has created a culture of complacence and inefficiency because the ‘rod of punishment’ is absent.

For example, even an FIR against a judge can only be registered after the permission of the CJI. This had tragic consequences in the provident fund scam where then-CJI Balakrishnan did not give permission to file an FIR against accused judges for almost two years, by which time the prime accused, Ashotosh Asthana, died in mysterious circumstances. Justice Sen was held guilty of misappropriating funds before he became a judge, when he was an ordinary citizen.

However, once he was appointed a judge, there was no other way to penalise him except through impeachment- a process so inefficient that not a single judge has been impeached in the last 67 years. In the case of Nirmal Yadav (who has the ignonimity of being the first judge to be chargesheeted while still in office), even though a three-judge panel recommended her prosecution, then-CJI Balakrishnan simply transferred her to a different High Court.

The Bill is a paradigm shift from the Judges (Inquiry) Act, 1968 because it allows ordinary citizens to file complaints against judges, mandates the disclosure of assets by judges and their close relatives and allows for punishments other than the arduous process of impeachment.

The most important development in the Bill is the definition of what constitutes “misbehaviour” by a judge because the constitution provides for the removal of a judge only in cases of “proven misbehaviour”. It has done so by giving statutory recognition to judicial standards that were adopted by the Supreme Court in 1997.

The Oversight Committee can issue advisory or warning or recommend minor punishment if the case does not warrant a removal. For serious charges, the Oversight Committee would request the judge to resign. Only a judge as obtuse and insolent as A Raja would continue beyond this point; in which case the Oversight Committee would recommend his removal to the President.

The Oversight Committee, which is the nodal institution to investigate complaints, includes three senior judges, the Attorney General and an eminent person appointed by the President. It is a welcome change from the current in-house system of grievance redressal in which judges are very reluctant to take strict action against their fellow “brother judges”, a tendency that Fali Nariman has equated with trade unionism. The Bill also gives the Scrutiny Panel and the Investigation Committee powers of a civil court which means that they have the right to summon witnesses and place documents on record.

The Bill should have been passed in the Rajya Sabha because it was not a contentious political issue and all major parties agreed with its provisions after the government had the good sense to remove a controversial clause that gagged judges. Now that the session is over, let’s hope that (for once) the ordinance-making power is put to good use and the country is “put into a stable order quickly”. Corruption is judiciary has a perverse multiplier effect on the national well-being because it shields all other forms of corruption by removing the “rod of punishment”. A huge backlog of cases and scarcity of judges at all levels further incentivises corruption. The heavy workload of High Court judges leaves them little time to supervise the functioning of lower courts.

Transparency International’s Global Corruption Barometer 2013 reported that 45 percent of surveyed households in India considered judiciary to be ‘corrupt’ or ‘extremely corrupt’ and 36 percent of households who had contact with the judiciary in 2012 reported to have paid a bribe. Something as simple as enforcing a commercial contract is a nightmare for companies. It requires them to undergo an average of 46 administrative procedures, takes an average of 1420 days and costs more than 39 percent of the actual claim. If the public starts losing faith in the judicial process, they resort to extra-judicial means of grievance redressal. This explains the rise of khap panchayats in Haryana and kangaroo courts like the one West Bengal which ordered the gruesome gang rape of a woman recently. In the words of Justice Brandeis, if we want the public to respect law, we must first make law respectable.

Opponents of the Bill raise important issues about the bill compromising judicial independence. For example, the Attorney General, who is part of the Oversight Committee, is the senior most law officer of the Union government and may regularly appear in the court of judges against whom complaints may be filed. The argument is that this may compromise judicial independence. They have also raised concerns about the possibility that frivolous complaints may be filed by the losing side in a dispute.

These opponents are free to suggest alternate measures to keep a check on judiciary. We could have a system of periodic referendum on continuance of judges, as is the case in USA and Japan. But the judiciary needs to understand that there is a limit to what we will do to protect judicial independence and the limit is well on this side of judicial accountability.